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HomeMy WebLinkAboutOcciano, Nathan; 2024-06-19;Mutual Release and Settlement Agreement This Mutual Release and Settlement Agreement ("Agreement") is entered into between the fo ll owing parties: Plaintiff Nathan Occiano ("Plaintiff''), Defe ndant Impressions at La Costa Owners Association ("HOA"), Defendant City of Carlsbad ("City") and Defendant Urban Corps of San Diego County ("Urban"). A reference to all patties may be collectively referred to herein as "Parties". A reference to all defendant parties to this agreement may be referred to as "Defendants". Recitals Plaintiff filed a civil action against Defendants entitled Nathan Occiano v. Impressions at La Costa Owners Association, et al., San Diego County Superior Court Case Number 37-2022-00025622- CU-PO-NC (the "Complaint" or "Lawsuit"). Defendants have denied liability to Plaintiff as alleged in the Complaint, and futther deny the nature and extent of damages arising therefrom. To avoid the time and expense oflitigation, the Parties desire to resolve,their differences and reach an end, compromise, and settlement for all disputes existing and potentially existing between them as relates to the events, facts and circumstances described in, or reasonably related to, the Complaint. The result of the settlement outlined herein is, and is intended to be, the complete discharge of all al leged, actual or potential liabilities and damages referenced in, or reasonably related to, the Complaint, and a dismissal with prejudice of the same. Agreement In consideration of the mutual execution of this Agreement and the releases and promises made in the Agreement by the Parties, the Parties agree as folJows: I. Plaintiff agrees to dismiss the Lawsuit with prejudice, and to settle and re lease any and all known, unknown, anticipated and unanticipated claims, losses and damages arising out of, in any way connected to, or resulting from the allegations of the Lawsuit against Defendants and DOES in exchange for the collective total sum of Seven Hundred Thousand Dollars ($700,000.00), with all parties to bear their own attorneys' fees and costs ("Settlement Amount"). The Settlement Amount shall be comprised of a contribution by HOA (or its insurer) in the amount of $500,000, a contribution by City ( or its insurer/risk pool) in the amount of $100,000, and a contribution by Urban (or its in surer) in the amount of$ I 00,000. The Patties fu rther agree that each Defendants' obligation to contribute to the Settlement Amount is several only, in the amounts identified above. Moreover, the Parties agree that the City's obligation to contribute its p01tion of the Settlement Amount is expressly conditioned upon prior approval of such settlement contribution by its City Council. The Parties understand and acknowledge that the Defendants' duties to tender the Settlement Amount imparl solely an obligation to pay their respective contributions as outlined above. Plaintiff and his counsel expressly agree to be solely responsible for the allocation of settlement fund s between Lhem, including to satisfy any attorneys' fees, costs or other obligations relating to the matters herein released. Occiano 1~ Impressions at La Costa, et al. I of6 Doc ID: 56b1cb209a8235899392fa35d685d0a8509da7d4 The Parties in good faith agree that a ll sums set forth herein constitute damages on account of physical injuries or sickness, within the meaning of Section 104(a)(2) of the Internal Revenue Code of 1986, as amended. However, Plaintiff acknowledges and agrees that the ultimate determination of this characterization is beyond the control of the Parties and, therefore, Pl aintiff agrees to be solely and exclusively responsible for the tax consequences of the Settlement Amount, if any, and to further indemnify and hold the Defendants and the Releasees (as defined herein below) harmless for any and every claim, right, demand or cause of action arising from any governmental or taxing authority relating to the Settlement Amount. 2. Manner of Payment. Payment of the Settlement Amount by, or on behalf of, Defendants. shall be tendered to Plaintiff's counsel within 45 days of (I) execution of this Agreement by Plaintiff, and (2) provision of a valid 2024 W-9 for all payees of the Settlement Amount. Payment of the Settlement Amount shall be made by check(s) payable to: "Carpenter & Zuckerman Client Trust Account f/b/o Nathan Occiano". With respect to the payment from, or on behalf of, the City, Plaintiff and the City agree that the City shall take all reasonable steps to seek approval of the City's contribution and tender its payment within the time contemplated. Plaintiff agrees, however, that should such process not be reasonably completed within the time identified above, Plaintiff and the City will reasonably cooperate with one another to secure payment within a reasonable time, not to exceed 60 days. 3. Dismissal After Payment. Within five (5) business days of receipt of the Settlement Amount by Plaintiff counsel, such counsel shall file and serve a fully executed Request for Dismissal of the entire action with prejudice. 4. Mutual Release: In consideration of the terms and conditions set forth herein, the Parties hereto (inclusive of the Defendants and their insuring entities, as against one another) fully and forever mutually release and discharge one another from any and all claims, demands, liabilities, rights, and causes of action, of every kind and nature, in law or equity, whether known or unknown, suspected, djsclosed, asserted in or that could have been asserted in the Lawsuit. These mutual releases apply to all past, present and future principals, officers, directors, pa1tners, employees, agents, contractors, shareholders, attorneys, insurers, reinsurers, predecessors, successors, guardians, heirs or assigns of the Parties to this Agreement (the "Releasees"). The Parties further agree and acknowledge that these mutual releases are general releases, and expressly waive and assume the risk as to any and all claims that exists as of this date but that they do not know or expect to exist, whether through ignorance, oversight, error, negligence or otherwise, and that, if known, could materially affect their decision to enter into this Agreement. Furthermore, the Parties expressly waive the benefits of the provisions of California Civil Code § 1542, which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. Occiano v. Impressions at La Costa, et al. 2 of 6 Doc ID: 56b1cb209a8235899392fa35d685d0a8509da7d4 By execution of this Agreement, the Parties each agree that the releases outlined herein do, and are intended to, effect a complete release and discharge of any and all actual, potential, anticipated or unanticipated clai ms, demands or causes of action by and between one another in any way related to, or arising out of, the events and transactions referenced in the Lawsuit, whether presently asserted or yet to be asserted. 5. Satisfaction of Liens. Plaintiff will indemnify and hold the Defendants and Releasees, their attorneys and their insurance companies and risk pools, harmless from any and all past, present or future claims, demands, or liability for liens of any kind (workers compensation, medical, mental health, or otherwise), Medi-Cal (State of California Benefits), Medicare or other governmental health coverage providers/insurers' conditional payments and rights to repayment, whether known or unknown. Plaintiff represents and wan·ants that he is aware of a DHCS Medi- Cal lien and is unaware of any other lien obligations asserted by State of California or the Federal Government and expressly acknowledges that this is a material term of this Agreement. Plaintiff also represents and warrants that he has received no care or treatment or the injuries/damages alleged in lhis Lawsuit for which any sums remain due and owing, and Plaintiff acknowledges that the Defendants are also relying on this material representation in reaching the settlement outlined in this Agreement. To the extent any governmental healthcare/statutory lien, or private lien of any nature, is asserted against the recovery in this matter, Plaintiff agrees to be solely and exclusively responsible for the discharge of such obligation and will fully satisfy and resolve such matters out of the Settlement Amount, without further contribution or payment of any kind by, or on behalf of, the Defendants or Releasees. Plaintiff agrees that payment of the DCHS lien is included in the full settlement amount of $700,000.00, and that the settlement draft(s) from Defendant Urban will include a draft payable to DHCS. Additionally, to the extent any attorney fee/cost liens or liens associated with any expe1t-related work commissioned on behalf of (or for the benefit of) Plaintiff fo r the Lawsuit, Plaintiff further agrees to satisfy and discharge such liens out of the Settlement Amount and agrees to indemnify and hold Defendants and Released Pa1ties harmless from any such liens. In recognizing this is a resolution of a disputed matter, the Parties further recognize the potential limiting implications posed by Government Code section 985(b), in light of the City's status as a public entity and the collateral source payments already tend ered for Plaintiff's medical care in this matter. In reaching the resolution outlined in this Agreement, the Parties have had an opportunity to consult counsel of their own choosing and reach this resolution with specific consideration of the potential impact of Government Code section 985(b). 6. No Admissions. This Agreement constitutes a compromise, settlement, and release of disputed claims and is being entered into solely to avoid the burden, inconvenience, and expense of litigating those claims. None of the Parties to this Agreement admits any liability to the other with respect to any clai m or any other matter. Each of the Parties expressly deny liability as to every claim, which may be asserted by the other Parties, and each of them. Therefore, this Agreement is not to be and shall never be construed or deemed an admission or concession by any of the Parties hereto of li abi lity or culpability at any time for any purpose concern ing any claim being compromised, settled, and released, or any other matter. Occiano ,,. Impressions at La Costa, et al. 3 of6 Doc ID: 56b1cb209a8235899392fa35d685d0a8509da7d4 7. Representations and Warranties. In fu1ther consideration for the above-mentioned value and consideration provided by/on behalf of Defendants, and in settlement of the above-referenced claims and disputes, the Parties represent and warrant as follows: All Patties represent and warrant that they (or their authorized representative) are a competent and legal adult in excess of 18 years of age with the legal capacity to understand and authority to enter into this Agreement; All Patties represent and warrant that they (or their authorized representative) have not previously assigned, transferred, granted or purported to assign, transfer or grant any of the claims, rights, demand s or causes of action, whether known or unknown, anticipated or unanticipated, disposed of by this Agreement. All Parties thereby represent and warrant that they maintain complete authority to enter into this Agreement and to forever compromise, dismiss and discharge the cla im s, rights, demands and causes of action, whether known or unknown, anticipated or unanticipated, arising out of, in any way connected to, or resulting from the Lawsuit. 8. Fee and Cost Waiver. The Parties shall each bear their own costs and attorney fees incurred in connection with the Lawsuit and completion of the actions contemplated by this Agreement, and each waives the right to make a claim against the other for such costs, attorney fees or any other expenses associated w ith the matters being settled here. 9. No Waiver. The fai lure of any of the Patties at any time to require performance of any provision of this Agreement shall not limit the Parties' respective rights to enforce the provision, nor shall any waiver of any breach of any provision constitute a waiver of that provision itself. 10. No Further Claims. Plaintiff expressly agrees that neither he nor his heirs, assigns, executors, administrators, agents, employees, affiliates, managers, owners, or successors, will continue and/or institute any legal or administrative proceedings against the Defendants or Released Parties before any comt, administrative agency, arbitrator, or any other tri bunal whatsoever, by reason of any claim, liability or cause of action, whether known or unknown, arisi ng out of, or in connection with the claims or allegations made in the Lawsuit, or otherwise being released herein. 11. Integration and Interpretation. This Agreement is the result of negotiation between the Patties and is the fully integrated and fi nal expression of the settlement described herein and supersedes any and all previous written or oral communications. This Agreement may not be altered, changed, or amended without a subsequent written document signed by all of the Parties. This Agreement shall be deemed to have been executed and delivered within the State of Cal ifornia. The rights and obligations of the Parties hereto shall be construed and enforced in accordance with, and governed by, the laws of the State of California, without regard to choice of law rules. Venue for any action arising out of this agreement shall be in San Diego County, Cal ifornia. Occiano v. Impressions at La Costa, et al. 4 of6 Doc ID: 56b1cb209a8235899392fa35d685d0a8509da7d4 12. Severability. In the event that any one provision or portion of this Agreement is later determined by a court of competent jurisdiction to be void or voidable, the Parties agree that any such language or provisions shall be severable, and that any such provisions so severed shall not affect the validity of the remainder of the Agreement subsequent to such severance. 13. Enforceability. The Parties agree that the Court will retain jurisdiction to enforce this Agreement pursuant to CCP §664.6. The Parties agree that if either party seeks to enforce this Agreement, it may be done pursuant to the provisions of CCP §664.6 and Evidence Code § 1123 , on an ex parte basis. 14. Complete Agreement. None of the Parties has made any statement, representation, or promise other than as set forth herein. Any representation, warranty, promise, or condition, whether written or oral, not specifically incorporated herein, shall not be binding upon any of the Parties and Plaintiff acknowledges that in entering into this Agreement he has not relied upon any representations, promises, or conditions not specifically set forth herein. 15. Counterparts. This Agreement may be executed in counterparts, and, when all executed signatures pages are taken together, shall constitute a complete Agreement. An electronic signature has the same force and effect as an original signature. The Parties, by their signatures below, have reviewed, understood, agreed and executed this Agreement and agree to be bound by it. Dated: -------- Dated: June 12, 2024 -------- Dated: -------- Occiano v. Impressions at La Costa, et al. Plaintiff, Nathan Occiano Nathan Occiano Defendant, Impressions at La Costa Owners Association By its Authorized Agent: Title: HOA Board President Defendant, City of Carlsbad By its Authorized Agent: Scott Chadwick Title: City Manager for City of Carlsbad 5 of6 12. Severability. In the event that any one provision or po1tion of this Agreement is later determined by a cou1t of competent jurisdiction to be void or voidable, the Pa1ties agree that any such language or provisions shall be severable, and that any such provisions so severed shall not affect the va lidity of the remainder of the Agreement subsequent to such severance. 13. Enforceability. The Patties agree that the Court will retain jurisdiction to enforce this Agreement pursuant to CCP §664.6. The Parties agree that if either party seeks to enforce this Agreement, it may be done pursuant to the provisions of CCP §664.6 and Evidence Code § 11 23, on an ex parle basis. 14. Complete Agreement. None of the Parties has made any statement, representation, or promise other than as set forth herein. Any representation, warranty, promise, or condition, whether written or oral, not specifically incorporated herein, shall not be binding upon any of the Parties and Plaintiff acknowledges that in entering into this Agreement he has not relied upon any representations, promises, or conditions not specifically set fo1th herein. 15. Counterparts. This Agreement may be executed in counterpa1ts, and, when all executed signatures pages are taken together, shall constitute a complete Agreement. An electronic signature has the same fo rce and effect as an original signature. The Parties, by their signatures below, have reviewed, understood, agreed and executed this Agreement and agree to be bound by it. Dated: 06 / 12 / 2024 Dated: _______ _ Dated: {_5S.)cL4 Occiano v. Impressions at La Costa, et al. Plaintiff, Nathan Occiano Nathan Occiano Defendant, Impressions at La Costa Owners Association Authorized Agent: By its th •• ed Agent: Scott Chadwick. Title: City Manager for City of Carlsbad 5 of6 Doc ID: 56b1cb209a8235899392fa35d685d0a8509da7d4 Dated: -------- Approved as to Form and Content: Dated: -------- Dated: June 12, 2024 -------- Dated: -------- Dated: -------- [END OF DOCU MENT] Occiano v. Impressions at La Costa, .et al. Defendant, Urban Corps of San Diego County By its Authorized Agent: Title: Carpenter & Zuckerman Attorneys for Nathan Occiano Karen D. Wood & Associates Attorneys for Impressions at La Costa Owners Association City of Carlsbad, Office of the City of Attorney City Attorney for City of Carlsbad Norton & Melnik Attorneys for Urban Corps of San Diego County 6 of6 Dated: -------- Approved as to Form and Content: Dated: 06 I 12 / 2024 -------- Dated: -------- Dated: u/;3l?tJ2'I Dated: -------- [END OF DOCUMENT] Occiano v. Impressions at la Costa, et al. Defendant, Urban Corps of San Diego County By its Authorized Agent: Title: Carpenter & Zuckerman ~ Attorneys for Nathan Occiano Karen D. Wood & Associates Attorneys for Impressions at La Costa Owners Association City of Carlsbad, Office of the City of Attorney ~ I<. ~~ City Attorney for City of Carlsbad Norton & Melnik Attorneys for Urban Corps of San Diego County 6 of6 Doc 1D:56b1cb209a8235899392fa35d685d0a8509da7d4 Dated: v/2/rt ---", '--,1-----'---- Approved as to Form and Content: Dated: ______ _ Dated: ------- Dated: ------- Dated: 06/19/2024 [END OF DOCUMENT] Occiano v. Impressions al La Costa, el al. Defendant, Urban Corps of San Diego Co~ By its Authorized Agent: i<y~ Kui,,eJ y Title:c,f o Carpenter & Zuckerman Attorneys for Nathan Occiano Karen D. Wood & Associates Attorneys for Impressions at La Costa Owners Association City of Carlsbad, Office of the City of Attorney City Attorney for City of Carlsbad Norton & Melnik G~)~.E. 'Ncu>un Attorneys for Urban Corps of San Diego County 6 of6